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Eng v. County of Los Angeles

August 24, 2010


The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge



Currently before the Court are Defendants Curtis Hazell ("Hazell"), Steve Cooley ("Cooley"), Steven Sowders ("Sowders"), Curt Livesay ("Livesay"), and Los Angeles County's ("County")(collectively, "Defendants") various Motions for Summary Judgment ("MSJs"). (Dkt. #s 179, 197, 200.) After careful consideration of the briefing and evidence submitted in support of and in opposition to each of these Motions, the record in this case, and the arguments offered by the parties at the August 23, 2010 hearing on these matters, the Court rules oneach of Defendants' Motions as follows.


Plaintiff David Eng ("Plaintiff" or "Eng") has been employed by the County as a Deputy District Attorney ("DDA") in the District Attorney's Office ("DAO") since July 1984, and has been a Level III DDA ("DDA III") since 1989. The DAO is one of 37 County departments, and since his swearing-in on December 4, 2000, has been headed by District Attorney ("DA") Cooley. Hazell, a long-time friend of Cooley's, has been a prosecutor in the DAO since 1976. Livesay was employed by the DAO on and off between 1965 and 2006, and from 2000- May 2001 and 2002-2006, was Chief Deputy DA, reporting directly to Cooley. Sowders, first employed by the DAO in 1973, served as Head Deputy of Employee Relations from 1993 to 2003, and reported directly to the Chief Deputy DA. In April 2003, Sowders became Head Deputy of Central Trials, and then assumed his current position as Head Deputy of Auto Insurance Fraud.

At all times, Eng's employment has been governed by Civil Service Rules ("CSRs") adopted by the County's Board of Supervisors, and enforced by the Civil Service Commission ("CSC"). One of the purposes of the CSRs is to "assure all employees in the classified service of fair and impartial treatment at all times subject to Merit System Standards and appeal rights."*fn2 Thus, the County exercises the "exclusive right to determine the mission of each of its departments... the assignment of work... transfer and reassignment of employees... to promote or demote employees... to discipline and discharge employees, and to determine the methods, means and personnel by which the [C]county's operations are to be conducted."*fn3

During his 2000 election campaign in which he defeated incumbent Gil Garcetti ("Garcetti"), Cooley suggested that there was a significant likelihood that fraud and environmental crimes had been committed in connection with the Los Angeles Unified School District's ("LAUSD") planning and construction of the Belmont Learning Complex ("Belmont Project"), and that a thorough investigation was required. Consequently, from early 2001 until April 2002, Eng was assigned to the Belmont Task Force ("Task Force") that Cooley established to carry out that investigation. The Task Force was originally organized as a separate entity within the DAO and headed by retired prosecutor Patchett, who repeatedly articulated his view that crimes had in fact been committed. Neither Livesay nor Sowders ever participated in the Task Force or attended its meetings. In August 2001, the Task Force was brought under the control of the DAO's Target Crimes Division, and Head Deputy of Target Crimes John Zajec ("Zajec") took over its supervision. Zajec reported to then Director of Specialized Prosecutions Hazell, who answered to Assistant DA of Special Operations Peter Bozanich ("Bozanich").

On July 16, 2001, the Task Force presented to Cooley and his Executive Staff its findings and recommendations regarding the filing of criminal charges. (Eng's 2007 Separate Statement of Genuine Issues Precluding Summary Judgment "2007SSGI" ¶ 50.) Against Pachett's wishes and recommendations, Plaintiff and his colleague, advised that no criminal charges associated with the project were warranted. (2007 SSGI ¶ 59, 60.) Plaintiff states that both Cooley and Hazell were "surprised" by the presentation, and that Hazell asked: "Damn, what's going on here?" (2007 SSGI ¶ 72.) Nevertheless, Cooley and the Executive Staff unanimously rejected Patchett's recommendation and concluded that no criminal charges should be filed. (2007 SSGI ¶ 73.)

At that meeting, the Task Force also discussed a newspaper article that reported that the Certificates of Participation ("COPs") that the LAUSD had used to finance the purchase of the Belmont property were being cancelled, and that the LAUSD would have to refinance that amount at a much higher interest rate. According to Plaintiff, the COPs were cancelled because Patchett leaked to the Internal Revenue Service ("IRS") that the LAUSD had used fraudulent COPs. Plaintiff claimed, and purported communicated to Cooley, that the COPs were legal and that reporting otherwise to the IRS was wrong and should be rectified. Cooley allegedly became angry and told Plaintiff to "shut up." (2007 SSGI ¶ 66.)

In Fall 2001, Eng began a romantic relationship with Task Force law clerk Adela Ploscar ("Ploscar"). In December 2001, their relationship ended and Ploscar went to Patchett and filed what was later deemed to be a false sexual harassment complaint against Eng.*fn4 Cooley learned of Ploscar's sexual harassment claim from Pachett, and instructed Patchett that he had an affirmative duty to report the claim. After that, Cooley had no further involvement in the matter. On December 6, 2001, Zajec informed Eng that he was under investigation (overseen by the DAO's Employee Relations Division)*fn5 for the sexual harassment of Ploscar, and was to have no further contact with her. Consequently, Eng worked from home from that point until January 2002.

In April 2002, Zajec told Hazell that Eng's written analysis of environmental issues was untimely and included portions lifted from a report prepared by Garcetti's administration, and recommended that Eng's Task Force duties be reassigned.*fn6 Hazell communicated these concerns to Bozanich, who directed Hazell to find a new assignment for Eng. On April 1, 2002, pursuant to Hazell's determination that the DAO's Juvenile-North Division branch office in Pomona "was in particular need of a DDA III prosecutor," Eng was notified of his reassignment. While Eng did not experience any reduction in compensation or benefits as a result of the reassignment, he contends that a reassignment to any juvenile position after one's initial "stint" as a new DDA should be considered a "clear demotion." (See TAC ¶ 59; 2007 SSGI ¶ 189.)*fn7

Given the DAO's policy of referring criminal matters involving DDAs to the Attorney General's ("AG") Office as conflicts of interest,*fn8 the DAO referred issues arising from Eng's access of the PIMS system to the AG's Office on September 13, 2002. The referral indicated that, as of September 16, 2002, Eng would be placed on administrative leave for the pendency of the matter, and that a decision regarding discipline was "pending." As a general rule, the DA is not involved in the disciplinary process. However, he did "want[] to be advised" of serious matters, including AG referrals. Thus, Livesay, who "could not recall a single other criminal referral to the AG's [O]ffice for any other employee who was ever caught using the DA[O]'s computer system for personal reasons" (2007 SSGI ¶ 221), informed Cooley of the referral near the time it was made. The AG's Office then filed a misdemeanor complaint against Eng for unlawful computer access and receipt or possession of criminal records by an unauthorized person, but the charges were dismissed on January 31, 2003 after the prosecution's primary witness invoked his right against self-incrimination.

In response to the notification of administrative leave that Eng received from Livesay,*fn9 Eng retained the services of lawyer Mark Garagos ("Garagos"). Following Eng's receipt of a notice of the DAO's intent to suspend him, Geragos defended Eng at a "Skelly Hearing" with Sowders and Assistant DA Sharon Matsumoto ("Matsumoto"). (2007 SSGI ¶¶ 200, 234-235.) Thereafter, on December 5, 2002, the DAO suspended Eng without pay ("first suspension") under CSR 18.01(A)*fn10 based on the then-pending criminal complaint against him, effective December 1, 2002. While the Notice of Suspension was signed by Matsumoto, the letterhead also bore Livesay's and Cooley's names. Eng appealed this suspension to the CSC. The Hearing Officer issued a Recommended Decision on May 29, 2003 finding that the first suspension was, in fact, based on the filing of criminal charges against Eng and that there was a nexus between the conduct alleged in the complaint and Eng's DDA duties. Despite the truth of those allegations, the Hearing Officer also concluded that the decision to suspend Eng "without pay" was inappropriate under the circumstances. Accordingly, the Hearing Officer recommended that Eng be made whole for all pay lost during his first suspension. The CSC adopted the Recommended Decision in full.

On February 28, 2003, the Los Angeles Times published an article (which Livesay and Sowders read) airing Plaintiff's contention that he was suffering retaliation because he had voiced his opinions relating to the Belmont Project, immediately after which Cooley released the Task Force's report containing Eng's conclusions presented at the July 16, 2001 meeting. (2007 SSGI ¶¶ 245, 247, 252, 299, 300, 301.) Sowders then told Geragos, in Eng's presence, that Eng would never be allowed to return to work at the DAO because "they would come up with additional things to charge him with." (2007 SSGI ¶ 251.)*fn11 On April 2, 2003, Eng, Geragos, Sowders, and Livesay met to discuss a possible "settlement," which Eng did not accept. (2007 SSGI ¶¶ 298, 313.)

After dismissal of the criminal charges, the DAO reviewed the results of the earlier investigations to determine whether to discipline Eng. According to Livesay, although he had already settled on "pursuing disciplinary charges" against Eng prior to the article's publication, he did not determine the "extent" of the discipline until after the settlement meeting. (2007 SSGI ¶ 313.) Based on those earlier investigations,*fn12 the DAO again suspended Eng without pay for 30 days ("second suspension") on April 23, 2003, retroactive to December 1, 2002. Because the second suspension ran concurrently with the first, Eng did not miss any additional work. The second suspension notice alleged that Eng violated DAO regulations by: (1) making certain statements to Sheriffs Deputies responding to his ex-wife's calls about her neighbors; (2) dealing with individuals involved in an altercation between his ex-wife and her neighbors untruthfully; (3) accessing the PIMS system; (4) leaving threatening messages on his ex-wife's boyfriend's answering machine; and (5) failing to exercise sound judgment in his relationship with Ploscar. Eng appealed this second suspension, after a four day hearing on which the Hearing Officer recommended the denial of Eng's appeal, calling the suspension "appropriate."

The Hearing Officer found that Eng violated the DAO's rules in three of the five alleged respects -- dealing with individuals involved in an altercation between his ex-wife and her neighbors untruthfully, accessing the PIMS system, and leaving threatening messages on his ex-wife's boyfriend's answering machine -- and concluded that these actions "brought discredit, embarrassment and loss of confidence in the office and [were] a conflict of interest." The Hearing Officer found no violations based on Eng's statements to Sheriff's Deputies or his relationship with Ploscar, but noted that it had been Ploscar who had "fil[ed] a false claim for sexual harassment."

The Hearing Officer rejected Eng's "defenses" that the charges were "untimely and... part of an attempt to get rid of him," and noted both that Eng "introduced no evidence that the [DAO's] discipline was based on personal animus" and that "it appear[ed] that the [DAO] had a legitimate concern that Eng was... bringing discredit on the [DAO]." The Hearing Officer also concluded that "[t]he decision to suspend Eng for 30 days was appropriate," described Eng's violations as "quite serious," and stated that either "Eng's suggestion that he would suborn perjury" or the "egregious" messages he left "could, [alone], support a 30 day suspension." The Hearing Officer agreed that the DAO needed "to send Eng a message," and added that "Eng has offered little in the way of mitigating circumstances... has portrayed himself as a victim of wrongdoing by others... even by the [DAO]... [and] has failed to take any responsibility for his own conduct and the fact that his responses were wholly inappropriate."*fn13 The CSC again adopted the Hearing Officer's Decision in full. (See Dkt. # 251.)

All told, Eng's time away from work lasted from September 16, 2002 to April 11, 2003. Sowders told Eng that he would have suspended him earlier but for his "sensitive" Task Force work. (Eng Decl. in Opp'n to Cooley, et al. MSJ ¶ 3.)*fn14 By that time, his position in Pomona had been reassigned to another DDA III. Therefore, on April 14, 2003, upon his return to work and just prior to receiving a second Notice of Intent to Suspend, Eng was assigned to the Los Padrinos Juvenile Court ("Los Padrinos") in Downey, and on May 15, 2008, to the David V. Kenyon Juvenile Justice Center ("Kenyon") in Los Angeles, where he remains today. Both of these re-assignments were made within Hazell's chain of command, but were primarily attributable to the Head Deputies at each facility, and based on the staffing needs of, the Juvenile-South and/or -North Divisions.*fn15 Eng did not appeal his 2002, 2003, or 2008 transfers to the CSC or Director of Personnel. While Defendants maintain that Eng experienced no adverse consequences as a result of these two later transfers, as both Los Padrinos and Kenyon are geographically closer to Plaintiff's home, Plaintiff contends that the transfers subjected him to heavier traffic and left him in a position unamenable to promotion. (Eng Decl. in Opp'n to County MSJ ¶ 4.)

Plaintiff filed a state court lawsuit on March 29, 2004, which he then dismissed on October 4, 2004 to pursue his claims in federal court. On April 12, 2005, Plaintiff filed the instant federal action alleging violations of 42 U.S.C. section 1983 and California Labor Code section 1102.5, and intentional infliction of emotional distress. This was the first Complaint in which Plaintiff purported to sue the County or Hazell under section 1983 or attempted to recover under a theory of municipal liability.

In 2005, Eng, along with 320 other candidates, applied for a promotion to DDA IV, and completed an examination consisting of (1) an Appraisal of Promotability ("AP") by a Review Committee (of which Livesay was the head and Hazell was a part) and (2) an objective, electronically graded written examination. Under CSR 11.01(C),*fn16 only those candidates whose overall score was 94.5 or higher on a scale of 100 were placed in "Band 1" and were eligible for promotion. Under CSR 11.01(E),*fn17 candidates outside Band 1 were ineligible for promotion unless and until all but four candidates within Band 1 were promoted. Eng's written score was 86.67 and his original AP score was 90, placing him in Band 3. Given Eng's written score, he would not have been placed in Band 1 even if his AP score had been a perfect 100. Because 94 candidates in Band 1 were left un-promoted when the list expired, Eng's written examination score made it mathematically impossible for the 2005 exam to render him eligible for promotion to DDA IV. Consistent with his rights under the CSRs, Eng appealed his AP score (but not his written score) to the Director of Personnel. On January 19, 2006, the Director of Personnel lowered Eng's AP score from 90 to 85 due to a prior miscalculation, (maintaining his Band 3 placement), and notified him of his right to file an appeal with the CSC within 10 days. Eng requested a CSC hearing, which was denied on August 9, 2006 "based on the Commission's opinion that the Appellant [was] not likely to prevail."

On June 9, 2008, the DAO circulated a memo instructing Grade III or IV DDAs interested in a job in the Environmental Law Section to contact Assistant Head Deputy Stanley Williams ("Williams"). Plaintiff promptly requested an interview, after which Williams told Plaintiff that he would submit Plaintiff's name for consideration. On August 20, 2008, Plaintiff inquired as to the status of his application and was told that another applicant had been selected for the position. (Eng Decl. in Opp'n to County MSJ ¶¶ 12-14, 16.) No Defendant or final County policymaker was involved in interviewing, considering, or selecting candidates for this opening.*fn18 Rather, the decision to eliminate Eng from consideration was made by Bureau of Fraud and Corruption Prosecutions Director Janice Maurizi ("Maurizi") after consultation with non-Defendant Bureau Directors, all of whose offices are, like Defendants', located on the "18th floor."

Meanwhile, Plaintiff filed First and Second Amended Complaints on January 23, 2006 and July 5, 2006 respectively. (Dkt. #s 20, 36.) On July 11, 2007, the Court denied Defendants' first Motion for Summary Judgment, which the Ninth Circuit affirmed on April 7, 2009. (Dkt. # 96, 122.) Following the Court's reconsideration and reversal of the June 14, 2006 dismissal of Plaintiff's section 1983 claim, Plaintiff filed a Third Amended Complaint on June 4, 2009 asserting the same claims as those in his original federal pleading. (Dkt. # 133.) On July 14, 2009, the Court stayed proceedings ...

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